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THE RECALL OF JUDGES 




ARTICLE PUBLISHED IN 
THE EDITORIAL REVIEW 
OF NOVEMBER, 1911 :: :: 


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PRESENTED BY MR. POINDEXTER 
MARCH 28, 1912.—Ordered to be printed 


WASHINGTON 

1912 




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THE RECALL OF JUDGES. 

By Miles Poindexter. 

The recall of officials, including judges, involving as it does the 
effort of the people to secure more direct control over the selection 
and the removal of their rulers, suggests a brief preliminary inquiry 
into the existing conditions of government in this regard. 

The Government of the United States is one of the most complex 
of any nation and by a remarkable system of checks and balances 
makes extremely difficult the immediate enactment into law of the 
will of the majority of the people, however large that majority may 
be. It is admirably adapted to prevent the oppression of the people, 
or any part of the people, by the enactment of laws, but for the same 
reason it hampers and limits the power of the people to affirmatively 
protect themselves by the enactment of such laws as they desire. 

Two forces which operated in the Constitutional Convention of 1787 
toward limiting the power of the Federal Government were: 

1. The bitter experiences which the colonists had just had with 
the centralized and practically alien power of the King and Parlia¬ 
ment of Great Britain. 

2. The jealousy with which each of the separate Colonies regarded 
the surrender of any portion of the powers of government to the 
Federal Union. 

In the remarkable system of checks and balances, both in the con¬ 
struction of the Federal Government itself and in the balance of 
power between the States and between the Federal Government and 
the States, it was intended to restrain and limit the functions of the 
central power and to distribute it in the first place among the several 
States; or, in the second place, to reserve it among the people them¬ 
selves. 

Of course, as in all history, the progress of events has taken an un¬ 
expected course, and many powers, phases, and functions have been 
evolved in the actual operation of the Federal Government which 
were not contemplated in the original formation of the Constitution. 
One result of this development is that while the extent and variety 
of the powers of the Federal Government have been enlarged, the 
control of the people, or the States, over that Government has not 
been correspondingly extended. 

Tremendous industrial and commercial agencies, the regulation or 
control of which now presents the most difficult political problem, 
have taken advantage both of the limitation of powers of the Federal 
Government and of the meager and indirect control of the people 
over it—so that these private agencies exercise an influence and a 
control over the condition and activities of the people to a greater 
extent even, so far as their material condition is concerned, than the 
Government itself. 


3 


4 


THE RECALL OF JUDGES. 


One hundred and twenty-four years have now passed since the 
Constitution was adopted, during which period this unexpected 
development of many and various conditions has taken place; and 
it is a subject for serious consideration, at least, whether the time 
has not arrived for the calling of a national convention for the purpose 
of making amendments to this instrument, so as to immediately 
adapt our fundamental law to these new and unprecedented circum¬ 
stances. 

While the American Colonies revolted because of the oppression of 
the British Government, it is nevertheless true that the Government 
of Great Britain in the interval since that revolt has constantly 
tended toward preserving the equality and liberty of its subjects 
and citizens until to-day, notwithstanding its monarchical and aris¬ 
tocratic hereditary features, the real governing power of Great 
Britain is more democratic than that of the Federal Government of 
the United States—that is, it is more immediately and effectively 
responsive to the popular will. 

These conditions are so obvious that it is not necessary to refer to 
the provisions of our Constitution which do not allow the result of 
public opinion at an election, however overwhelming may be the 
majority, to take effect in legislation until a long period of time after 
the election, but in the meantime allow laws to be enacted by a Con¬ 
gress which may have been repudiated by the people at the polls; 
nor is it necessary to call attention to the fact that in addition to the 
foregoing circumstances only one-third of the Senate of the United 
States, one of the coordinate legislative bodies, is subject to selection 
every two years—so that there is constantly in office a two-thirds 
membership of the Senate which has not been chosen as the result of 
the most recent expression of public opinion. In addition to this 
consideration, even this one-third membership of the Senate which 
is chosen every two years is not chosen by the people, for the people’s 
influence in its choice is diluted by being delegated to the legislatures, 
which legislatures themselves in turn are not the result of the most 
recent expression of public opinion in the States, a portion of their 
senatorial bodies—usually two-thirds—being held over from some 
previous term. 

In Great Britain it would be impossible that a law passed by 
the House of Commons by an overwhelming majority (such, for 
instance, as the bill for the admission of New Mexico and Arizona as 
States into the Union as it was passed by the Congress of the United 
States recently) should be vetoed by the King or any other power. 
There is no such check on the legislative expression of the people in 
Great Britain through its Parliament as the prerogative of veto which 
is lodged in the Chief Executive of this country. Furthermore, even 
although laws deemed by the people essential for their welfare have 
passed both Houses of Congress, notwithstanding all the difficulties 
indicated above, and also have passed the Executive and escaped the 
presidential veto, still there is another ordeal through which they are 
compelled to pass, namely, the approval of the courts, and particu¬ 
larly that of the Supreme Court of the United States, which body is 
very far removed in the manner of its appointment and its tenure of 
office from the will or the desires of the people. Many times in deter¬ 
mining the validity of an act of Congress the determining factor is the 
opinion of the judges of the Supreme Court of the United States as to 


THE RECALL OE JUDGES. 


5 


the public policy of such legislation. There is no court in Great 
Britain which has the power to so set aside and invalidate an act of 
Parliament. 

The House of Commons of Great Britain, which is immediately and 
entirely responsive to public opinion, the entire membership being 
changed at one election, is the real governing force of the British 
Empire. In addition to the many circumstances stated above as 
giving to the people of England more direct control of their Govern¬ 
ment than citizens of this country have over that of the United 
States, the fact that the House of Commons itself, which, as stated 
above, is immediately and directly responsive to public opinion, also 
contains within its own body the supreme executive power of the 
nation, and at the same time absolute control over the judiciary, is 
of great benefit to governmental action along the lines desked by the 
people. 

These reflections are suggested by the difficulty constantly illus¬ 
trated, particularly in recent months, which the people have, acting 
through their representatives in Congress, in reaching misconduct, 
inefficiency, or corruption in their executive officials. Take, for 
instance, the exposures in the Interior Department, in the Post Office 
Department, in the Agricultural Department, one phase of which, 
that recently attracted public attention, is the cabal existing in the 
latter department for practically nullifying the effect of the pure-food 
laws at the instigation of the very interests against which the laws 
were directed. 

To pursue further the comparison of this Government with that of 
England, taking the cases just mentioned, for instance, all that would 
be necessary to bring the case and the official immediately before the 
bar of public opinion and of both legislative and executive scrutiny 
would be a question by a member of Parliament to an executive 
minister of the Crown, who was also a member of Parliament in 
charge of the particular department of the Government involved. 

Article Y or the United States Constitution is in part as follows: 

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall 
propose amendments to this Constitution, or on the application of the legislatures of 
two-thirds of the several States, shall call a convention for proposing amendments, 
which, in either case, shall be valid to all intents and purposes, as part of this Consti¬ 
tution, when ratified by the legislatures of three-fourths of the several States, or by 
conventions in three-fourths thereof, as the one or the other mode of ratification may 
be proposed by the Congress. * * * 

From the nature of this provision it is apparent that a small 
majority in each one of one-fourth of the States and in one additional 
State, even though they be the smallest in population, can at any 
time prevent an amendment of the Constitution of the United States 
earnestly desired by all of the rest of the people of the Union. This 
is true even after a proposed amendment has passed the tedious 
process of the approval of two-thirds of Congress. 

For a generation a great majority of the people of the United States 
have desired popular election of United States Senators, and a small 
minority during all of this time has prevented the adoption of 'this 
amendment. In response to overwhelming popular sentiment the 
Congress of the United States enacted an income tax, and yet although 
it has passed the difficulties of the hold-over Senate chosen by hold¬ 
over legislatures, it did not remain upon the statute books but was 
nullified by the Supreme Court of the United States, although in five 


6 


THE RECALL OP JUDGES. 


previous decisions of that court an income tax had been held to be 
constitutional. The comparatively small influence which may defeat 
the overwhelming popular will of the country is illustrated by the 
fact that the change of opinion of one judge of the Supreme Court, 
pending the litigation of this case, reversed the decision of the court 
and rendered ineffectual an act of the Congress of the United States. 

The great agencies of commerce and industry which in many 
instances have seized for private control public agencies of the Govern¬ 
ment—such as the making of tariff rates, fixing of transportation rates 
for passengers and freight, and the acquirement and control of 
public resources and franchises of the country, lands, timber, mineral 
coal, water power, highways—absolutely defy the power of the 
separate States to control or regulate them, boldly seeking refuge 
under the exclusive jurisdiction of the United States over interstate 
commerce. When, in turn, the people seeking such regulation apply 
to the United States Government they are met with the delays, 
obstructions, and defeats growing out of the checks and balances, 
separation of departments of the Government, and the independence 
of each from the other referred to above. 

The consequence is that, while in the early days of the republic 
the ideal of Jefferson of a Government which interfered as little as was 
consistent with peace and good order of society with the individual 
liberty of the citizen, was sufficient—in these modern days, when 
“ Frankenstein” corporate combinations of industry and transporta¬ 
tion have been developed and have established monopolies of trade, 
commerce, and the necessities of life, it is necessary for the Govern¬ 
ment to have affirmative power to interfere with their encroachments 
upon the rights of private citizens. Taking advantage of the diffi¬ 
culty of the enactment and execution of laws desired by the vast 
majority of the people these private interests have established within 
but, at the same time, apart from the Government an extra-con¬ 
stitutional government of machine politics combined with big 
business interests, operating through secret caucuses, hand-picked 
conventions, professional political bosses, and exercising a power 
far greater in many instances than the constitutional agencies of 
legislatures, city councils, or even the Federal Government itself. 
By reason of this condition of things, while on the one hand the people 
have been prevented from taxing reasonably the exaggerated ac¬ 
cumulations of wealth acquired by such exclusive privileges and the 
private control of public functions, at the same time they them¬ 
selves have been burdened with the most exorbitant taxes collected 
to pay dividends on watered stock; transportation rates levied upon 
the basis of “all the traffic will bear;” and exorbitant prices for food, 
fuel, machinery, and other necessities. Under this system trans¬ 
portation companies which acquire their franchises as common 
carriers have also become the owners of the commodities of trans¬ 
portation and commerce, and have used the control of the public 
function of transportation as a means of absolutely controlling the 
sale and distribution of such commodities,- thereby establishing in 
many instances the greatest monopolies known in the history of the 
world. 

One conspicuous instance of this combination of the ownership 
of transportation with the commodities of transportation is the con¬ 
trol of the anthracite coal supply of the United States by the rail¬ 
roads—a combination organized by J. Pierpont Morgan. 


THE RECALL, OF JUDGES. 


7 


In order to maintain this system which has built up private 
fortunes, at the expense of the welfare and comfort of the mass of 
the people, beyond the dreams of any other age or country, criminal 
methods have been employed, and the principle that “the end 
justifies the means” has governed the directors of these trusts. 
Murder, blackmail, larceny, perjury, bribery, forgery, false pretense 
and fraud have all, with more or less frequency, been resorted to. 
An essential of the system being the control, to a greater or less ex¬ 
tent, of the Government, or certain departments thereof, the pro¬ 
moters and leaders of these great enterprises have gone into politics 
and banked their success upon the election of public officials who 
in many instances could be depended upon as the willing servants 
in official life of the special interests to whom they owe their pro¬ 
motion. This combination of corrupt business with corrupt politics 
has not been confined to the legislative and executive departments 
of the various local and general governments of the country, but 
has in too many instances in a greater or less degree, with more or 
less notoriety and publicity, extended to the judiciary itself. 

A certain dignity and reverence has very properly attached to the 
courts of the land as the ideal administrators and adjudicators of law 
and justice. On the one hand this has been developed and exagger¬ 
ated into a certain mysticism and false sanctity approaching the 
religious reverence which was cultivated for the idols of Egypt. On 
the other hand the people have advanced in general intelligence', 
education, and information; have discovered the weakness and the 
corruption of many officials including, sometimes, even judges; 
realize that judges in any case are only human, and as such are liable 
to err, and have advanced the claim that judges as well as all other 
officials, being chosen from among the people to act as the repre¬ 
sentatives of a superior power, and for the people themselves in the 
administration of law, should be strictly responsible to the people 
and subject to their control to the same extent as are legislative and 
executive officers. When it was first proposed to depart from the 
ancient English system of an appointive judiciary and to establish 
an elective judiciary the same opposition was encountered as is now 
opposed to the recall; yet experience has demonstrated that the 
people are capable of electing competent judges and that the admin¬ 
istration of the law by judges chosen by popular vote is equally as 
satisfactory as by those who were formerly appointed by the King, 
or more recently by the President, or by governors, or by legislatures. 
The same arguments are made against the recently proposed means 
of restoring popular government—such as direct legislation and the 
recall—as were opposed to every advance in the liberties of the 
people—against the Declaration of Independence, the Constitution 
of the United States, the Great Charters of Liberty of England, and 
all the struggles which gradually, through the centuries, have ac¬ 
quired the priceless blessings of free government for the English- 
speaking race. The same principles are now involved. If the 
people are capable of governing themselves they can be trusted 
with these new agencies. If they are not capable of governing 
themselves of course they will make a failure of the new system. 
It is undoubtedly true, however, that the possession and exercise 
of these powers and responsibilities will steady the judgment and 
increase the intelligence and general information of those who use 
such privileges. 


8 


THE RECALL OF JUDGES. 


The growth of civilization is coexistent with the growth of democ¬ 
racy. The finest flowers of human refinement have bloomed in 
“free Athens,” in the liberal republics of the Italian Renaissance, and 
in the constitutional Governments of the modern world. On the other 
hand, the deepest ignorance, the greatest poverty and discomfort 
were suffered in that feudal despotism of the middle ages. We have 
not, indeed, yet reached the summit of human advancement, but 
with the irresistible march of democracy improved conditions for the 
general mass of mankind will be developed physically, intellectually, 
and spiritually. 

In the debates in Congress on the subject of the recall of judges as a 
feature of the Arizona constitution eloquent tributes were paid to 
the great judges in English and American jurisprudence. They 
were held up as the products of the system which removed the judi¬ 
ciary from the influence of what is contemptuously described as 
“public clamor,” and the inference was drawn that great judges 
would be no more if the judiciary were made immediately responsive 
and responsible to the public will as expressed by the people at the 
polls. It is certainly true that English and American jurisprudence 
is adorned with the names of great judges and great courts; but an 
examination of history discloses the fact that the greatest of these 
judges and the most admirable of these courts were coexistent with 
the expansion of popular liberties. John Marshall was the product 
of the epoch-making struggle for freedom in the American Revolution 
and of the establishment in permanent form of the American Consti¬ 
tution. It was not only the establishment of that form of the funda¬ 
mental law which produced John Marshall, but also the free condi¬ 
tions incident to the settlement and independence of a new country. 
In like manner the great names of English jurisprudence were the 
products of the revolution of 1688, advancing the liberties of the 
people of England and for the first time establishing the rights of the 
people through the House of Commons to control not only the ap¬ 
pointment but also the recall of judges. The system of a so-called 
independent judiciary—that is, a judiciary independent of the people— 
while it may have produced some great judges, has also produced 
some corrupt ones, and some judicial tyrants who have disgraced a 
great profession. A court which was sufficiently, at least, removed 
from so-called “popular clamor” was the court of the “star chamber” 
of the King’s privy council, which has been for centuries and will be for 
centuries to come a synonym for judicial tyranny and corruption. 
The “Bloody Jeffreys,” to whom the law was not an evangel of 
mercy and justice, but merely the brute power of the court to satisfy 
an insane and cruel thirst for blood, was also sufficiently removed 
from “popular clamor” and the influence of the multitude so contemp¬ 
tuously referred to by the opponents of the recall of judges in this 
country. Cases have been known where insane judges, beyond the 
reach of all the people, have for a period of time been the arbiters of 
the people’s rights. In the immediate present too many instances 
are known where the corrupt whispers of political bosses and the 
social and official power of the magnates of big business reach the ears 
and effect the decisions of the court, where the common citizen can 
not get a hearing. Where such a condition exists, as it undoubtedly 
sometimes does exist, a judge, entirely beyond the reach of public 
opinion and safe from the just indignation of the Nation or the State 


THE RECALL OF JUDGES. 


9 


is, in the language of John Marshall, “the greatest curse that an indig¬ 
nant God could visit upon an unjust and sinning people.’’ Such a 
condition is intolerable, and it is to relieve such a situation as this, 
and to make its recurrence impossible, that the people in certain 
States and communities have proposed the simple, orderly, conserva¬ 
tive, but effective method of the recall. 

The assertion is made that to establish the recall and direct legisla¬ 
tion is to substitute passion and caprice for law. Such a thought can 
have its origin in perverted reason only. If the will of an intelligent 
and free people as expressed in the orderly operation of a general elec¬ 
tion is frenzy, and passion, and caprice, the statement is true; and 
anyone expounding such a proposition confesses himself as unworthy 
of sharing in any system of popular government, and should be set 
down at once as the enemy of free institutions. It is not proposed to 
abolish any function of the government nor to interfere with the oper¬ 
ation of due process of law. Every judge will continue to adjudicate 
the law, and the knowledge that he is responsible to no power but an 
intelligent public opinion, which is not only the most delicate but 
also the most exact instrument of human intelligence of which we can 
conceive, will be an incentive to any honorable judge to render none 
but righteous judgments. It will not be necessary even actually to 
put in operation the recall. The reserve power of the people in this 
respect will have its effect without being put in operation. This has 
been the experience in Oregon, where, although upon the statute 
books for years, it has not been applied. 

The common argument that judges would regard “popular clamor” 
in their decisions presupposes weak, corrupt, and vicious individuals 
upon the bench, and also violates reason, because such a course of con¬ 
duct would inevitably defeat its own purpose and meet with the con¬ 
demnation instead of the favor of the public. If such judges are upon 
the bench, they are far more apt to yield to the seductive influence of 
great corporate power and wealth and the t}u*anny of political machines, 
under a system which removes them from the reach of public opinion, 
than to yield to such public opinion under a popular system. 

It was urged in the Senate that religious persecution might be the 
result of subjecting the judiciary to the control of the people; as 
though religious bigotry had not always been the ally and prot6g6 of 
intrenched privilege, while religious freedom had found its sanctuary 
among the masses of the people. The people do not persecute; it is 
they who have been persecuted. The religious massacres and inqui¬ 
sitions of history have been inflicted by powers over which the people 
had no control, and from such, not from the people, will the horrors of 
oppression ever come. 


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